Canada: Adoption, Parental Leave And Commissioning Parental Leave

Parental Leave

An employee, who is a parent of a child, is entitled to at least ten consecutive days parental leave commencing on the day that the employee's child is born; the adoption order is granted, or the child is placed in the care of the prospective adoptive parent in terms of a court order.

Adoption Leave

An employee who is the adoptive parent of a child under the age of two is entitled to adoption leave of at least ten consecutive weeks commencing on the day that the adoption order is granted or the child is placed in the prospective adoptive parent's care.

If an adoption order is made in respect of two adoptive parents, one of the adoptive parents may apply for adoption leave and the other adoptive parent may apply for parental leave. This choice is that of the adoptive parents.

Commissioning Parental Leave

An employee who is a commissioning parent¹ in a surrogate motherhood agreement² is entitled to commissioning parental leave of at least ten consecutive weeks commencing on the date a child is born.

If a surrogate motherhood agreement has two commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other commissioning parent may apply for parental leave. This choice is that of the two commissioning parents.

Conclusion

Reference to the gender neutral "an employee" is made in Sections 25A, B and C of the LLAA which is progressive in that it recognises diverse family units.

It is unclear at this stage whether a female employee who is entitled to maternity leave may also claim entitlement to parental leave. It seems unlikely that this was the Legislature's intention.

It is important to note that an employer is not obliged to pay the employee for the duration of the parental, adoptive or commissioning parental leave unless it is contractually obliged to do so. The employee is entitled to claim unemployment insurance benefits.

Footnotes

[1] The term 'commissioning parent' is defined in the Children's Act, 2005 as "a person who enters into a surrogate motherhood agreement with a surrogate mother"

[2] 'surrogate motherhood agreement' is defined in the Children's Act, 2005 as "an agreement between a surrogate mother and a commissioning parent in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent and in which the surrogate mother undertakes to hand over such a child to the commissioning parent upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent"

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.